5.  The applicant was born in 1950 and lives in Garevac.
6.  On 23 August 1994 the applicant’s sister, F.Č. was admitted to the Rebro Hospital in Zagreb (Klinički bolnički centar Zagreb – Rebro) as an emergency case. She required surgery for an abdominal tumour. Dr V.B. assumed charge of her treatment.
7.  Dr. V.B. was a surgery professor at the University of Zagreb Medical Faculty (Medicinski fakultet Sveučilišta u Zagrebu). At the time of the events he worked as a surgeon in the Rebro Hospital where he had been for more than thirty years, and around the period at issue he ran for a managerial position in that hospital.
8.  On 26 August 1994 the applicant paid Dr V.B. 5,000 German marks (DEM) in order to perform the surgery and on 30 August 1994 Dr V.B. operated on the applicant’s sister.
9.  A day after surgery the applicant’s sister was transferred from the intensive-care unit to a regular ward. In the early morning of 1 September 1994 she died. Dr V.B. established massive pulmonary embolism as the cause of death.
10.  On 17 May 1995 the applicant complained to the Ministry of Health (Ministarstvo zdravstva Republike Hrvatske) about the circumstances of the medical treatment of his sister in the Rebro Hospital.
11.  The Ministry of Health forwarded the applicant’s complaint to the director of the Rebro Hospital on 8 June 1995 and ordered an inquiry.
12.  On 28 June 1995 disciplinary proceedings were opened against the doctor before the Disciplinary Commission of the Rebro Hospital (Disciplinska komisija Kliničkog bolničkog centra Zagreb) on charges of having committed a disciplinary offence of receiving payment for performing surgery.
13.  On 19 July 1995 Dr V.B. was found to have committed the disciplinary offence as charged and dismissed from the Rebro Hospital. As to the allegations of medical negligence the Disciplinary Commission noted:
“The medical records concerning F.Č. are incomplete; there is no information concerning her treatment (her previous and present condition, her personal medical history is missing, as well as information on her general status, local status, pre-surgery treatment, indication, the surgery itself, post-surgery treatment, histological record and the cause of death), there is no record concerning her release from hospital or information concerning her reanimation in the intensive care unit. The Commission finds that, by failing to [ensure the] proper administration of the medical records, Prof Dr V.B. has failed to perform his duties diligently, but it does not wish to make any conclusions concerning his professional conduct in treating F.Č.”
14.  Dr V.B. lodged an appeal against that decision before the Administrative Panel of the Rebro Hospital (Upravno vijeće Kliničkog bolničkog centra Zagreb) and on 22 August 1995 the Administrative Panel overturned the first-instance decision and ordered his suspension from work for one year. The enforcement of this measure was suspended.
15.  On 20 October 1994 the applicant and two other relatives of the deceased lodged a criminal complaint against Dr V.B. with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu), accusing him of the criminal offences of accepting bribes and medical malpractice. The Zagreb Municipal State Attorney’s Office asked the investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) to hear Dr V.B. and potential witnesses and to commission a medical report. Responsibility for producing the medical report was given to doctors J.Š. and B.C., both employed at the University of Zagreb Medical Faculty.
16.  On 24 October 1997 they produced their report. They found that there had been no failures in the treatment of the applicant’s sister that could have resulted in her death.
17.  Based on their findings, on 19 February 1998 the Zagreb Municipal State Attorney’s Office rejected the criminal complaint in respect of the alleged medical malpractice. The applicant and other relatives of the deceased were instructed that they could take over the prosecution of Dr V.B. by lodging an indictment as subsidiary prosecutors in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu).
18.  On 9 March 1998 the applicant and two other relatives of the deceased lodged an indictment in the Zagreb Municipal Criminal Court against Dr V.B. on charges of medical malpractice. They challenged the medical report made by J.Š. and B.C. and asked that a new medical report be commissioned. The relevant part of their submissions reads:
“As a result of such [a cursory approach] when assessing the responsibility of the accused, the injured parties propose that another medical report be commissioned [from] a medical institution outside the University of Zagreb Medical Faculty, so that a more objective opinion can be produced.”
19.  On 17 March 1998 the Zagreb Municipal State Attorney’s Office indicted Dr V.B. in the Zagreb Municipal Criminal Court on charges of taking bribes, but these proceedings were discontinued on 31 August 2000 on the ground that the prosecution had become time-barred.
20.  At a hearing on 21 November 2000 Dr V.B. pleaded not guilty to the charges of medical malpractice. The applicant asked that a number of persons be called as witnesses for the prosecution and reiterated the request for a new medical report to be commissioned from experts who did not have any connection with the University of Zagreb Medical Faculty. In support of the request the applicant argued that Dr V.B., in addition to acting as a medical doctor at the Rebro Hospital, was also attached to the University of Zagreb Medical Faculty in a capacity of professor. The applicant pointed out that J.Š., one of the experts to whom responsibility for producing the medical report of 24 October 1997 had been given during the investigation, was a professor at the same University.
21.  At a hearing on 23 February 2001 the applicant again asked that a new medical report be commissioned from an institution outside Zagreb and reiterated his previous arguments of the incompatible professional relationship between the experts and the accused. On the same day, and having regard to the arguments submitted, the Municipal Criminal Court decided that a new medical report would be commissioned from the Rijeka University Medical Faculty (Medicinski fakultet Sveučilišta u Rijeci). The court relied on Article 250 § 2 of the Code of Criminal Procedure (Zakon o kaznenom postupku).
22.  On 31 May 2001 M.U., a doctor from the Rijeka University Medical Faculty, submitted a report to the Zagreb Municipal Criminal Court. He found that there had been no indication of any failures in the course of the medical treatment of the applicant’s sister.
23.  On 5 July 2001 the applicant’s lawyer submitted a written objection to M.U.’s findings to the Zagreb Municipal Criminal Court.
24.  At a hearing on 6 July 2001 M.U. gave oral evidence. In addition to explaining the content of his report he stated that he was not a permanently appointed medical expert but rather an ad hoc medical expert. He also confirmed that he was not employed in the same institution as Dr V.B., nor did he have any other connection with him.
25.  On 13 November 2001 the applicant submitted a privately commissioned medical report by D.M., a medical specialist in urology and surgery from Wiesbaden, Germany. In his report D.M. excluded the massive pulmonary embolism as the cause of death and found that the applicant’s sister had died from pulmonary edema which had been caused by an acute cardiac arrest. D.M. also noted that in order to exclude any failures in the postoperative course of treatment, it would be necessary to consult other documentation and make further examinations.
26.  At the final hearing held on 9 June 2003 the applicant asked that D.M. be called as a witness for the prosecution. He further requested that another medical report be commissioned from an institution outside Croatia. On the same day the Zagreb Municipal Criminal Court pronounced judgment in the case whereby it acquitted Dr V.B. of the charges of medical malpractice. The Zagreb Municipal Criminal Court relied in its findings on the submissions of M.U. including his expert report which had concluded that there been no flaws in the medical treatment of the applicant’s sister. The court further held that this finding had been corroborated by other witnesses and relevant documents. In respect of the applicant’s request for the commission of another medical report, the court noted:
“It has to be noted that the court commissioned the decisive medical report from a surgeon who was not a permanently appointed medical expert. This is because the accused himself has stated in his defence that he had been a recognised doctor and also a medical expert for a number of years. Therefore, in order to prevent any possible doubt as to the truthfulness and objectivity of experts from a relatively small professional environment such as Zagreb, the report was commissioned from an expert from another city, namely, Rijeka.
The Court also dismissed the request by the prosecution that a report be commissioned from a medical institution outside Croatia, as there was no doubt as to the expertise and objectivity of [M.U.] ...”
27.  On 17 September 2004 the applicant lodged an appeal with the Zagreb County Court, complaining that the first-instance court had erred in its factual findings and in the application of substantive and procedural law.
28.  On 22 February 2005 the Zagreb County Court quashed the first-instance judgment and ordered a retrial, on the grounds that the medical report had been drawn up by a doctor who had not been a sworn medical expert. It also instructed the Zagreb Municipal Criminal Court to hear again J.Š. and B.C., the experts who had previously drawn up a report during the investigation. The relevant part of the decision reads:
“Since in the case at issue the medical report was not drawn up by a permanently appointed expert or a specialised institution, and the judgment is based on such evidence, the appellants correctly pointed out that there had been a miscarriage of justice ...
In the retrial the first-instance court shall again take all the evidence and question the permanently appointed experts who drew up the medical report during the investigation, Prof Dr J.Š. and Prof Dr B.C. They must give their evidence at the trial and only then, if the parties make any objection which could raise doubts as to the accuracy and relevancy of their opinion, may the court commission a new report from a specialised institution in or experts from Croatia ...”
29.  On 4 October 2005 the Zagreb Municipal Criminal Court commissioned a new medical report from J.Š. and B.C., but on 6 October 2005 J.Š. informed the court that B.C. had died. At a hearing on 1 December 2005 the court assigned the report only to J.Š.
30.  At a hearing on 10 February 2006 J.Š. asked the Zagreb Municipal Criminal Court to reassign responsibility for producing the medical report to two other experts. On the same day responsibility for producing the report was reassigned to doctors J.Š., M.D. and S.J., who were all professors at the Zagreb Medical Faculty. S.J. was also the Head of the Department for Pathology of the Rebro Hospital.
31.  On 14 November 2006 the applicant lodged with the Zagreb Municipal Criminal Court a motion to disqualify the medical expert witnesses, claiming that they did not have necessary expertise and that they were close associates and friends of the accused. He pointed out that S.J. was employed at the Rebro Hospital.
32.  On 3 January 2007 J.Š., M.D. and S.J. issued their medical report. They found that there had been no failures in the medical treatment of the applicant’s sister by the accused or by other medical staff at the Rebro Hospital.
33.  On 25 April 2007 the Zagreb Municipal Criminal Court denied the applicant’s motion to disqualify the expert witnesses on the grounds that there had been nothing in their report to suggest any bias or unlawfulness on their part. The relevant part of the decision reads:
“Following the decision of the appellate court, a first hearing in this case was held on 4 October 2005 ... at which a medical report was commissioned from experts Dr [J.]Š. and Dr [B.]C. Since the court was informed that Dr [B.]C. had died in the meantime, another expert report was commissioned from Dr [J.]Š. at the hearing held on 1 December 2005 ... As the case in issue essentially required a combined medical report, it was decided at a hearing on 10 February 2006 that a report would be commissioned from Dr [J.]Š., Dr [M.]D. and Dr [S.]J., a forensic expert, a pathologist and a surgeon respectively. The records of the hearings show that the subsidiary prosecutor, who was legally represented, made no objection when the report was commissioned from these experts.
In view of the fact that the victim was hospitalised with a diagnosis of an abdominal tumour, it was necessary to commission a report from a forensic expert, a pathologist and a surgeon. Moreover, as regards the objection that [S.J.] was not a consultant cardiologist or endocrinologist, [that] is not a ground for his disqualification, as an expert’s knowledge and specialisation can only be grounds for an objection concerning [his or her] findings ...
There are no reasons to doubt the impartiality of Prof Dr S.J., since he is a permanently appointed expert and, moreover, Head of the Pathology Department at the University of Zagreb’s Medical Faculty. The fact that he is also Head of the Pathology Department at the Rebro Hospital does not call into doubt his impartiality as the said institution employs hundreds of individuals and the accused has retired in the meantime. This is also the case because [S.J.] is obliged to draft his report conscientiously and to his best knowledge, as well as to present his findings accurately, comprehensively and objectively, and with due regard to the relevant rules. The arguments of the subsidiary prosecutor that the said experts are close associates and friends of the accused are unsubstantiated and there was nothing else to suggest a lack of impartiality on their part.”
34.  On 22 October 2007 the applicant again asked for another medical report to be commissioned from an institution outside Croatia. He pointed out that the accused had been a professor for many doctors over the years in Croatia and, as an example, referred to a statement by a witness, doctor M., who had testified before the Zagreb Municipal Criminal Court that he had a good, friendly relationship with the accused.
35.  At a hearing on 22 November and again during the final hearing on 19 December 2007 the applicant reiterated in vain his request that another medical report be commissioned from an institution outside Croatia, but the judge conducting the proceedings dismissed it and concluded the trial. On the latter date the Zagreb Municipal Criminal Court acquitted Dr V.B. of the charges of medical malpractice, on the grounds that the medical report had excluded any failures in the medical treatment of the applicant’s sister, which was corroborated by the statements of witnesses and other medical documentation. As to the applicant’s claim of bias on the part of the medical experts, the relevant part of the judgment reads:
“Disregarding the fact that these experts are colleagues and [that] they perhaps know the accused, their report did not disclose any appearance of their bias in favour of the accused. Moreover, on 25 April 2007 this court had already dismissed the prosecutor’s motion to disqualify the experts as ill-founded ...”
36.  On 29 January 2008 the applicant lodged an appeal with the Zagreb County Court, complaining that the first-instance court had erred in its factual findings and in the application of procedural law.
37.  On 24 February 2009 the Zagreb County Court dismissed the applicant’s appeal and upheld the first-instance judgment. The County Court found that there had been no need to commission a medical report from outside Croatia because the applicant’s complaints that Croatia was a relatively small professional environment and that the case concerned a well known doctor had merely been his subjective impression and were without any justification. The relevant part of the decision reads:
“The report – drafted by three well known experts – was not called into doubt. Since the proceedings were conducted in Croatia, where Croatian law applied, there was no reason to commission a medical report from experts from another country. The medical report privately commissioned by the subsidiary prosecutor could have served [as a basis] for formulating questions. But, since they have not called into doubt the expert knowledge of the experts who drafted the medical report in the present case, and the report is not self-contradictory or dubious, there was no reason to commission a medical report from a medical institution abroad, particularly since that was neither expedient nor necessary. The mere assertion by the prosecutors that Croatia was a “relatively small professional environment” where the accused was a well known doctor, and that there was solidarity among doctors, which was only the [subsidiary] prosecutor’s subjective opinion, without having called into doubt the accuracy of the report’s findings, did not mandate the commission of another report. The fact that the said objection was not addressed by the first-instance court can only be considered as an insignificant breach of procedural rules which did not call into doubt its findings as to whether the accused had committed the offence or not.”
38.  On 21 May 2009 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining that there had been flaws in the proceedings concerning the death of his sister and Dr V.B.’s alleged medical malpractice. He submitted that the medical experts who had drawn up the medical report had not been impartial.
39.  On 26 November 2009 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the proceedings in issue had not concerned any of his civil rights or obligations or any criminal charge against him. This decision was served on the applicant on 4 January 2010.
40.  On 23 March 2001 the applicant brought a civil action in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) against Dr V.B., seeking repayment of the DEM 5,000 that he had paid for his sister’s surgery.
41.  On 10 January 2006 the Zagreb Municipal Civil Court found in the applicant’s favour and ordered Dr V.B. to pay the applicant the requested amount.
42.  On 27 February 2006 Dr V.B. lodged an appeal with the Zagreb County Court.
43.  On 6 November 2007 the Zagreb County Court quashed the first-instance judgment and ordered a retrial, on the grounds that the Zagreb Municipal Civil Court had failed to establish all the facts relevant in respect of the statute of limitations applicable to the applicant’s civil action and in the light of the fact that the criminal proceedings against Dr V.B. on charges of taking bribes had been discontinued as time-barred (see paragraph 19 above).
44.  Following new proceedings before the first-instance court, on 10 September 2009 the Zagreb Municipal Civil Court again found in the applicant’s favour. As to the statute of limitations, the court held that the applicant had not caused the criminal proceedings against Dr V.B. to become time-barred and therefore found that his civil action had not become time-barred.
45.  On 10 November 2009 Dr V.B. lodged an appeal with the Zagreb County Court.
46.  On 11 May 2010 the Zagreb County Court overturned the first-instance judgment and dismissed the applicant’s civil action on the grounds that it had become time-barred.
47.  The applicant lodged a constitutional complaint with the Constitutional Court against the judgment of the Zagreb County Court and these proceedings appear to be still pending.